Anyone who has at least once used an open source software product and has had the foresight to read its licence has surely come across clauses such as this:
“There is no warranty for the program, to the extent permitted by applicable law. Except when otherwise stated in writing the copyright holders and/or other parties provide the program ‘as is’ without warranty of any kind, either expressed or implied, including, but not limited to, the implied warranties of merchantability and fitness for a particular purpose. The entire risk as to the quality and performance of the program is with the licensee. Should the program prove defective, the licensee assumes the cost of all necessary servicing, repair or correction (GPL v3 art. 15)”
The function of the clause is to eliminate the risks linked to malfunctioning of the programme, and its presence is justified on the basis that the licence is granted for free.
In addition, the exclusion performs a protective function: in fact, the original code can be modified multiple times by multiple parties, and in such cases the author cannot be held responsible for the modifications made to their work by third parties. So while, from a practical viewpoint, the warranty disclaimer finds strong and entirely shareable arguments, from a strictly legal viewpoint such arguments are not sufficient to justify its presence in the licence.
Indeed, limiting or excluding the warranty on a good means inserting a vexatious clause whose inclusion in a contract is allowed, but only within strict limits: art. 1341, paragraph 2, establishes that the exclusion must be “specifically approved in writing”.
The Italian Civil Code further states that, in contracts whose object is the constitution or transfer of ownership or another right, in order for that effect to occur, the simple “consent of the parties legitimately expressed” is required (art. 1376 c.c.); such consent may be expressed in any form suitable to make explicit the acceptance of the contractual conditions, except where one falls into one of the cases listed in art. 1350 (such article governs cases in which the written form is necessary on pain of invalidity of the contract).
In particular, for the licence — being an unnamed contract not falling within the list of art. 1350 c.c. — freedom of forms is provided, so much so that in the case of software it is by downloading/using it that consent to adhere to the conditions contained in the licence is expressed, obtaining in return the possibility to enjoy the rights granted by it.
Therefore “nulla quaestio” in the case where the licence is approved in writing by each individual licensee, but in the internet era this does not happen. Practice in fact provides that the software is transferred simply by download, so the licence and the rights granted by it pass to the recipient.
At this point the problems arise: if for the validity of the licence written acceptance is not required, in order for the warranty disclaimer to produce effects, specific written approval is nonetheless necessary. In the case where the approval is not present, the clause cannot bind the parties and is treated as if not inserted. It should be noted that this could have direct repercussions on the validity of the entire contract as well: art. 1419 c.c. entails the nullity of the contract resulting from the nullity of individual clauses “if it appears that the contracting parties would not have entered into it without that part of its content that is affected by nullity”. Such an eventuality is not so far from reality.
Indeed, the economic logic of open source rests on a business model in which the software code is developed, in a diffuse manner, by many parties, and what is paid for is not the software itself (offered for free), but the services connected to it (customisation, installation, maintenance etc.).
In these cases, providing the warranty would mean taking on costs that could in no way be covered by the price of the software, in addition to the fact that those who provide services could not guarantee the proper functioning of all contributions to the code elaborated by other parties — to whom it is often impossible to trace back.
The possibility of not having to offer the warranty is therefore essential in determining the will to enter into the contract. The fact that it is inserted without there having been written acceptance can render the entire contract null. From the analysis above, the topic of warranties is highly critical in the application of open source licences. The solution of simple on-screen acceptance of licence conditions does not comply with what is required either by current legislation or by the case law that has expressed itself on the topic, which has clearly affirmed that such acceptance cannot be considered written form (Bolzano Tribunal, ruling 145/05).
A solution could be found in the electronic signature, whose use however is at the moment still too little widespread. In conclusion, it is therefore possible to affirm that until legislation provides for the introduction of adequate legal institutions, it will be practice that has to devise innovative systems to fill the gaps left by the legislator.